New Law Affects State Government Rulemaking and Contested Cases

By Ann B. Wall

Rulemaking coordinators across state government are no doubt heaving a sigh of relief.  They will welcome a new law that makes long desired changes in state government rulemaking. This new law will allow quick fixes to small but important elements in the North Carolina Administrative Code (NCAC). See, S.L. 2019-140, An Act to Amend Various Administrative Procedure Laws. The changes were effective with Gov. Cooper’s signature on Friday, July 19.       

Under the old law, agencies could skip publishing a notice of text and a public hearing if they wished to do something as minor as correct an address in a rule. However, that one, minor change subjected the entire rule to review by the Rules Review Commission (RRC).  Even for such a minor change, the RRC could review the entire rule and request changes. G.S. 150B-21.5 (amended eff. 7/19/19) and G.S. 150B-21.9.

The new law eliminates RRC review of the entire rule if an agency changes readily available public information, such as telephone numbers.  Agencies do have to notify the Codifier of Rules if they make such corrections. The Codifier can then make the corrections within the official NCAC.

The new law also eliminates RRC review of an entire rule if the Codifier of Rules makes other clearly needed, non-substantive changes to rules.  The Codifier must consult with the agency whose rule it is before making such changes.  For example, the Codifier can now correct non-substantive typos. She can also correct a citation within a rule, for example, if the cited law or rule has been renumbered or repealed.  In a much-needed change, the Codifier will be able to correct names of organizations when their names change. In an era of constant reorganization of State government, this will allow rapid updating of the NCAC, making it both more accurate and user-friendly. The Codifier notified agency rulemaking coordinators on August 5, 2019 with regard to the requirements for submitting changes.

The Existing Rules Review (ERR) process is amended by the new law as well. The new law eliminates the ability to classify reviewed rules as “necessary without substantive public interest”. Previously, rules with that classification went back into the NCAC unchanged at the end of the ERR process. The impact of the new law’s change to ERR is that in the next ERR, with a few statutory exceptions, all reviewed rules will either be removed from the NCAC as unnecessary or will have to go through the readoption process.

Finally, the new law makes clarifying changes to Article 3 of the Administrative Procedures Act.  The new law states that an aggrieved person can file a petition for a contested case hearing without first having to file either a petition for rulemaking or a request for a declaratory ruling.

For more information: See the General Assembly’s staff summary # 70 at and this opinion piece, “Key N.C. regulatory reform advances with little fanfare”,

[1] Ann B. Wall is General Counsel of the North Carolina Department of the Secretary of State.  Opinions expressed in this article are her own.